Opinion
Argued February 6, 1967
Remanded with instructions July 26, 1967 Petition for rehearing denied September 19, 1967
Appeal from Circuit Court, Multnomah County, ALFRED T. SULMONETTI, Judge.
Remanded with instructions.
William C. McCarthy, Portland, argued the cause and filed briefs for appellant.
Ernest M. Jachetta, Portland, argued the cause for respondent. With him on the brief was Leo Levenson, Portland.
Before PERRY, Chief Justice, and SLOAN and LUSK, Justices.
This is an appeal by the defendant Felmley from a judgment entered in favor of the plaintiff in the sum of $15,614.47.
This is the second appeal of this case. In the prior case, Western Rebuilders, Inc. v. Felmley, 237 Or. 191, 386 P.2d 813, 391 P.2d 383, we reversed the action for wrongful eviction for the sole purpose of having the damages suffered by the plaintiff determined.
The trial court appointed a referee and adopted the referee's report allowing damages as follows:
Moving expenses $ 1,200.00 Operating loss for February and March 2,997.72 Lease deposit 675.00 Loss of good will 10,741.75
The eviction of the plaintiff came two months and ten days prior to the expiration of the lease that was not to be renewed. Also, the plaintiff was required by its lease to operate the business under the name of "Western Welding Co." This name had been established by the defendant and used by him over a period of many years and was to revert to the defendant at the expiration of the lease. It must also be noted that the person who had managed and operated the business and dealt with the customers of plaintiff had left plaintiff's employ.
Under all of these circumstances the question of good will is left in a highly speculative state, insufficient to support a judgment. Levene et ux v. City of Salem, 191 Or. 182, 229 P.2d 255.
This court stated in Buck v. Mueller, 221 Or. 271, 285, 351 P.2d 61:
"Before it would be proper to submit the question of damage for the loss of good will, it would be necessary to produce evidence that the business had the qualities which are the ingredients of good will."
The record in this case is insufficient to support any damages for loss of good will and such allowance is set aside.
The amount of damages proved by the plaintiff is $4,872.72.
The cause is remanded with instructions to enter a judgment in the sum of $4,872.72 in favor of the plaintiff and against the defendant.